Obstruction of Justice and the Presidency: Part I

December 5th, 2017


President Donald Trump’s lawyer, John Dowd, asserted that the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” In a follow-up interview, Dowd added that the president “has more power and discretion on that matter tha[n] DOJ and FBI put together. He cannot obstruct himself!” This position is ultimately incorrect, but buried within it are three important statements about the separation of powers. First, Dowd unambiguously embraced the unitary executive theory: the Department of Justice (DOJ) and FBI do not have any executive power, but for the president’s own delegations. Second, because the president is the executive branch personified, and is ultimately responsible for all criminal investigations, the president cannot obstruct that process. Third, because the president is legally unable to obstruct justice, he cannot be held liable for such actions.

I agree with the first argument, concur-in-part with the second, and dissent from the third. Although the president is unitary, certain structural limits exist over his control of federal law enforcement. The president can obstruct justice. However, the president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution. Thus, the question whether the president obstructs justice will turn on whether his actions are supported by Article II itself.

As a constitutional matter, the Justice Department does not exist, but for the president. It’s true that Congress establishes the agency, creates its offices, appropriates funds, and confirms the president’s nominees. But there is one attribute of DOJ that Congress does not—and indeed cannot—delegate: the executive power. “Governmental investigation and prosecution of crimes is a quintessentially executive function,” Justice Scalia explained in his Morrison v. Olson dissent — a point with which the majority did not disagree. This authority exists in the president, and the president alone. Article II, Section I explains “[t]he executive Power shall be vested in a President of the United States of America,” and no one else. Once the attorney general or FBI director is confirmed, the president can then delegate his executive power to those officers, and maintain that delegation so long as doing so satisfies his duty to take care that the laws are faithfully executed. In turn, those principal officers can then delegate that executive power—concerning law enforcement and other matters—to their subordinates as provided by law. However, the president maintains the absolute power to withdraw that authority for any reason, or no reason at all. Here, I table the constitutional status of independent agencies, and even the independent counsel statute addressed in Morrison, precisely because under current law, Robert Mueller is under the authority of the Justice Department.

In this sense, Dowd is correct that the president “is the chief law enforcement officer.” Further, at least with respect to the breadth of executive powers, the president indeed does “ha[ve] more power and discretion on that matter tha[n] DOJ and FBI put together.” The whole is greater than the sum of its parts. But this does not mean that the president has unfettered authority over the administration of justice. Starting from first principles, the Constitution enumerates “bribery” and “treason” as explicit grounds for impeachment. If the president accepted a bribe in exchange for signing an executive agreement that gave aid and comfort to foreign belligerents—even though these are actions in his official capacity—the president could be removed from office by Congress. This otherwise lawful act amounts to bothbribery and treason. However, the lawful exercise of an Article II power — whether signing an executive agreement or vetoing a bill — does not give rise to an impeachable offense.

By similar logic, the House of Representatives could include another article of impeachment if the president subsequently removed an attorney general because he was investigating such an offense. Whether or not Congress codified “obstruction of justice” as a crime—it did so fairly early on in 1831—this termination could be subsumed within the broader category of “high Crimes and Misdemeanors.” Practice bears out this construction, as the articles of impeachment for both Presidents Richard Nixon and Bill Clinton included counts for obstruction of justice. Here, Dowd is incorrect: The president can obstruct justice. Regardless of whether a sitting president can be indicted in federal court for such acts, he can be removed from office for doing so. None of this should be controversial.

Yet, none of these niceties resolve the controversy of the day: whether Trump’s actions violate federal law, or amount to “high Crimes and Misdemeanors.” The analysis for the former category is easier than the latter, but both ultimately wind up in the same place.

Congress cannot, by statute, take away a power that the Constitution vests in the president. Myers v. United States held that Congress cannot strip the president’s absolute authority to fire officers who are subject to his control. Morrison v. Olsonupheld the independent counsel statute precisely because it did not “impermissibly interfere with the President’s authority under Article II.” In contrast, Zivotofsky v. Kerry did impermissibly interfere with the president’s authority because Congress required the president to recognize foreign nations. In Myers and Zivotofsky, statutes that deprived the president of his constitutional authority were invalidated.

A prosecution brought under the federal obstruction of justice statute that impermissibly interfered with the president’s constitutional authority would be, as applied to such a case, unconstitutional. (I offered a similar analysis concerning regulations that purport to limit the president’s power to remove the special counsel.) The difficult question, though, is on which side of the Morrison v. Olson line such a prosecution would fall. Chief Justice William Rehnquist’s majority opinion affirmed the Ethics in Government Act because it gave “the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.” This line — which may or may not be supported by five justices on the current Court — is the clearest line we have. If such a criminal prosecution disabled the president from “perform[ing] his constitutionally assigned duties,” the obstruction statute, as applied, would be unconstitutional.

A different analysis would pertain if the Senate, sitting as a court, alleged that the president’s interference with an investigation amounted to a “high Crime[] and Misdemeanor[].” This charge would not present the problem of a statute conflicting with the Constitution; in every such case, the Constitution prevails. Rather, it would present a clash within Article II, between the president’s assertion of authority under Sections 1 through 3, and the impeachment clause in Section 4. What happens when one provision of the Constitution conflicts with another? Specific grants of powers must prevail over less specific restrictions on power. That is, the president’s enumerated authority to take care that laws are faithfully executed—which embraces the unenumerated removal power—takes precedence over the undefined genre of “high Crimes and Misdemeanors.” I tender this rule with some trepidation because, admittedly, there is scant guidance to be had. My guiding principle is Hamilton’s warning in Federalist 65 about the potential political abuses that are inherent in the impeachment process. The Framers, cognizant of this risk, deliberately imposed a super-duper two-thirds majority for removal (the same standard to propose amendments to the Constitution itself) and required the chief justice to preside. The presumption should support leaving the president in office if there are any constitutional doubts, and not removing him.

Either as a matter of statutory or constitutional law, the president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution. Part II of this series will consider whether Trump’s actions concerning the firing of FBI Director James Comey comport, or fall outside, this principle.

Cross-Posted at Lawfare